Lau Kwan-ying v. Lo Wang-kay

DCEC000118/1978

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

WORKMEN'S COMPENSATION CASE NO.118 OF 1978

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Coram: Judge Hooper in Chambers

Date of Judgment: 27 April 1979

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RULING

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1. This is an application by an employee under S.17(4) of the Workmen's Compensation Ordinance for an agreement which was approved by the Commissioner for Labour, to be made an order of the Court.

2. In accordance with Regulation 5 of the Workmen's Compensation Regulations the Applicant lodged with the Registrar of the Court the details of the agreement as to the amount of compensation payable by the employer. These details were contained in the prescribed Form 3. They indicated that the Applicant who is an amah aged 76 years of age sustained the accident on the 28th March, 1978 when she slipped and fell in the market in Chuen Yeung Street, North Point, Hong Kong when she was shopping for her employer. She sustained a fracture of the right arm and the amount of compensation agreed was $5,040.12. The agreement was dated the 24th August, 1978 and was approved by the Commissioner for Labour on the 1st September, 1978.

3. The Applicant took out an inter-parte summons in Form 10 of the District Court Civil Procedure (General) Rules in which she was referred to as the Plaintiff and her employer as the Defendant. This summons was duly served on the 15th November, 1978 requiring the employer ("Defendant") to appear in Court on the 20th December, 1978 when the application would be made.

4. On the 20th December, 1978 the Employer ("Defendant") duly appeared and the learned judge who heard the matter on that day made an order that the "grounds of opposition" should be filed within 14 days and that a date of hearing was to be fixed by the Deputy Registrar following the filing of the grounds.

5. A document entitled "Respondent's answer to notice" was filed on the 22nd December, 1978 by Messrs. H.M. So & Co., Solicitors, in the following terms:-

The hearing date was fixed for the 17th April, 1979, upon which day the matter came before me.

6. In my view the course which this matter has taken is wholly irregular.

7. An agreement which has been approved by the Commissioner is binding on the parties until it has been cancelled or varied under section 17(5). This is particularly borne out by the recent amendment to section 17 by way of an additional subsection (2A) in the following terms:-

"An agreement approved by the Commissioner under this section shall be read and construed as providing (whether or not it so provides in fact) that, where the employer fails to pay any sum as compensation within 21 days after the date stipulated in the agreement for the payment thereof, the employer shall be liable to pay to the workman a surcharge of five per cent of such sum or $50, whichever is the greater, in addition to the compensation payable under the agreement."

8. An application for an agreement to be made an order of the Court under section 17(4) does not effect liability at all. It's sole purpose is to enable a party seeking to enforce the terms of the agreement to have made an order of the Court to enable him to have recourse to the process of the Court. Such an application may therefore be made ex parte (W.C.C. Nos. 68,69 and 70 of 1978).

9. If either a party to the agreement or the Commissioner wishes to cancell the agreement or vary its terms, an application should be made to the Court under section 17(5) and it matters not whether the agreement has been made an order of the Court or not. The Court cannot act on its own iniative in these matters. An application under this subsection can only be made by a party to the agreement or the Commissioner.

10. In fact no such application was made in the present case either by the commissioner or a party for cancellation or variation of the agreement.

11. The most unfortunate thing about this case is that as far back as the 19th October, 1978 the Employer had written to the Commissioner for Labour indicating that he had only recently been advised by his solicitor that the compensation should be calculated on her salary at the time when the accident occurred and that therefore the amount agreed was incorrect. On the 1st November, 1978 a memo was sent by the Commissioner for Labour to the Deputy Registrar, the Victoria District Court enclosing photostat copies of a number of documents including the agreement and the Respondent's letter dated the 19th October, 1978 to the Commissioner for Labour in which he indicated that the worker, Madam LAU Kwan-ying, insisted that the agreement should be made an order of the Court, but that the employer asked for cancellation of the approved agreement.

12. At this stage the employer was only disputing quantum. By the time the "grounds of opposition" were filed, the employer was disputing liability. Although both times were well inside the limitation period of 6 months in which a subsection (5) application must be made, no such application was made either by the Commissioner or the employer. The limitation period expired on the 1st March, 1979 and the employer is now out of time for making such an application.

13. I feel a great deal of sympathy for the employer who would appear to have been ill advised in this case, despite the fact that he was at one stage represented by a solicitor and had brought his dispute to the attention or the Commissioner of Labour and officers of this Court before the limitation period had expired. I have been informed by Mr. Clough who appeared for the applicant that the employer's solicitors who filed the grounds of opposition had been advised that there was no defence and that the grounds of opposition were irrelevant but that the solicitors did not share that view. This Court did not have the opportunity of hearing the solicitors because a notice to act in person was filed on 12th April 1979 by the employer. The reason for this was apparently because he could not pay the fees.

14. In these circumstances I considered that I had no alternative but to make the order requested by Madam LAU Kwan-ying ordering that the agreement be made an order of the Court. I also advised the employer that he may wish to take legal advice to see if he has any remedy against his solicitors or any other person. I also indicated that a copy of this Ruling would be sent to the Law Society.

27 APR 1979